On January 25, 1980, probably by
posing as a security guard, Harding managed to gain entrance to 5:
Tucson motel room of Robert Wise and Martin Concannon. Harding hogtied
both men with multiple ligatures and shot each A the head and chest from
close range. Harding also beat Wise with a lamp and stuffed sock into
Concannon's mouth. He then took various articles belonging to both men
and departed in Concannon's car.
About 8:00 p.m. that same day, Harding appeared at
Wise's home in Mesa, knocked on the door, and asked Wise's wife whether
"Bob" was them He had one of Wise's business cards in his left hand and
kept his right hand in his pocket while he spoke with Mrs. Wise at the
door. He left, probably because a child and a large dog were present.
Harding was arrested in Flagstaff on January 26, 1980, while driving
These are the other crimes that Donald Eugene Harding
is accused of committing in the weeks after he sawed his way out of an
Arkansas jail on Sept. 17, 1979:
Attempting to rob a prostitute in Chicago on
Sept. 27, 1979.
Robbing a steakhouse in Omaha of $83,000 in cash
and jewels, and pistol-whipping a patron on Sept. 30, 1979.
Holding up a Knoxville, Tenn., bank on Oct. 23,
The murder of Stanton Winston Blanton in Dallas
on Dec. 10, 1979.
The kidnapping and robbery of the B.R. Baker
family in their north Dallas home on Dec. 11, 1979.
Using a phony security guard's badge to enter
insurance agent Ronald Svetgoff's motel room in Waco, Texas, before
tying and gagging him, and stealing his car on Dec. 18, 1979.
Tying up Clayton Hall, his wife and another
couple, and robbing them in Dallas on Dec. 24, 1979.
Robbing, hogtying and gagging Phillip Buss in a
Salt Lake City hotel on Dec. 31, 1979, and stealing his car.
Robbing and murdering Charles Dickerson on Jan.
3, 1980, in a motel in South Lake Tahoe, Calif. Dickerson was found
beneath a bed, bound and gagged, and dead of asphyxiation.
Pulling a .25-caliber automatic pistol on Frank
Palmer of Sacramento, and tying him with cord and neckties from
Palmer's apartment before stealing his car and credit card on Jan.
Asking to rent an apartment from Lyle and
Margaret Murphy of Bakersfield, Calif., and then stealing their
money and their car. --› Forcing Joseph Wohlers and his uncle,
Robert Stoick, into their Los Angeles hotel room at gunpoint on Jan.
6, 1980, and hogtying them before taking their credit cards, luggage
Murdering and stealing a car from Gerald Huth, a
businessman from Minnesota, on U.S. 101 near Paso Robles, Calif., on
Jan. 10, 1980.
Kidnapping and robbing Shirley Land and four
others in her husband's San Diego optometry clinic Jan. 21, 1980.
Using adhesive tape from Allan Gage's colostomy
bag to tie his hands and feet while robbing him in a Phoenix motel
room on Jan. 25, 1980. Gage suffocated on a sock stuffed in his
mouth and secured with tape, and Harding later was convicted of the
Presiding Judge: Harry Gin
Prosecutor: Victor Wild
Start of Trial: April 21, 1982
Verdict: April 27, 1982
Sentencing: May 26, 1982
Execution: April 6, 1992
Prior conviction punishable by life imprisonment
Prior conviction involving violence
State v. Harding, 137 Ariz. 278, 670 P.2d 383 (1983).
Harding v. Lewis, 641 F. Supp. 979 (D. Ariz. 1986).
Harding v. Lewis, 834 F.2d 853 (9th Cir. 1987).
Harding's gas-chamber execution lasted more than 11
minutes and was so gruesome that Arizonans voted to require prisoners
condemned after November 1992 to be executed by lethal injection.
Several Fried Eggs, Several Strips of Bacon Toast, Butter, Honey and
Harding (March 1, 1949 – April
6, 1992) was convicted of the January 25, 1980 murders
of Robert Wise and Martin Concannon. He was executed in
1992 by the State of Arizona by gas chamber. He became
the first person to be executed in Arizona since 1976
when the death penalty was reinstated.
Harding's execution is also
noteworthy in that his asphyxiation in the gas chamber
took 11 minutes before death was finally confirmed. His
death caused the reporters to be visibly upset.
This provided momentum for the
movement to replace the gas chamber with lethal
injection, and in November of that year, Arizona voters
approved the change in method, although prisoners
sentenced to death prior to November 15, 1992 could
still choose the gas chamber. Harding thus became the
last prisoner executed in Arizona's gas chamber without
having lethal injection as an option (Karl-Heinz LaGrand
chose the gas chamber in 1999).
Gruesome Death in Gas Chamber
Pushes Arizona Toward Injections
The New York Times
April 25, 1992
The Arizona House of
Representatives, its members disturbed by
graphic accounts of the slow death of the first
man executed in the state's gas chamber in 29
years, has voted to switch from gas to lethal
The change to a method
presumed to be more humane passed the House 41
to 7 on Thursday. The State Senate is considered
likely to pass an identical measure. After
Senate approval, the matter would be put before
the voters in November as an amendment to the
state Constitution, which now specifies the use
The change was proposed early
this year but did not gain significant support
until the April 6 execution of a triple murderer,
Donald Eugene Harding, in the gas chamber at the
state prison in Florence.
Mr. Harding was not
pronounced dead until 10 1/2 minutes after two
cyanide pellets were dropped into a bowl of
sulfuric acid beneath his chair. Witnesses
described a gruesome scene: Mr. Harding gasping,
shuddering and desperately making obscene
gestures with both strapped-down hands.
The campaign for change
gained momentum on Tuesday when California had
its first execution in 25 years. The California
inmate, Robert Alton Harris, also took 10
minutes to die.
Arizona, Maryland and
California are the only states where gas is the
sole method of execution. In Mississippi,
prisoners who were given death sentences before
1974 are executed by gas and prisoners sentenced
since then are executed by injection.
amendment was introduced early this year by
State Representative Lela Steffey in response to
complaints about the possible pollution involved
in venting gas after an execution. Popular
Ms. Steffey said polls showed
that a majority of state residents supported the
change. Among the backers is State Attorney
General Grant Woods, who acknowledged being
disturbed by watching Mr. Harding die.
The chief opponent of the
change was the head of the House Judiciary
Committee, Patti Noland, a supporter of victims'
rights whose son was shot to death last year
during a traffic dispute.
But she changed her mind
because, she said, victims would like to
eliminate what they see as a delaying tactic by
defense lawyers -- the argument that gas amounts
to unconstitutionally cruel and unusual
Arizona hanged its murderers
until 1930, when a condemned woman was
accidentally decapitated. The state switched to
the gas chamber in 1933 on the ground that it
was more humane.
Arizona Conducts First Execution in
April 7, 1992 - The New York Times
Arizona conducted its first
execution in 29 years today, putting to death a
triple murderer who made obscene gestures while
he was strapped in the gas chamber.
The prisoner, Donald Eugene
Harding, 43 years old, was executed just after
midnight after a flurry of appeals. He was
pronounced dead 10 1/2 minutes after cyanide
pellets were dropped into a bowl of sulfuric
acid beneath his chair to release the gas.
As he waited, Mr. Harding
gestured as if to urge the executioner to get
started. At least twice, once while in the
throes of death, Mr. Harding extended his middle
finger. At the time, he had straps across his
Mr. Harding was sentenced to
die for the 1980 murders of two businessmen,
Robert Wise of Mesa and Martin Concannon of
Tucson, who were robbed, hogtied, beaten and
shot in a Tucson hotel in 1980.
He was also convicted of
killing a man in similar fashion a day earlier
in a Phoenix motel and was linked to at least
three other slayings, one in Arkansas and two in
It was the first execution in
Arizona since 1963, when Manuel Silvas died in
the gas chamber for fatally shooting his
estranged pregnant girlfriend.
Mr. Harding became the 168th
person put to death since the United States
Supreme Court allowed states to resume use of
capital punishment in 1976.
Since then, 36 states have
put the death penalty back in the books, and
Arizona became the 19th state to carry it out.
Delaware conducted its first execution in nearly
46 years on March 14, when Steven Brian Pennell
was put to death. On April 21, Robert Alton
Harris is scheduled to die for the 1978 murder
of two teen-agers in California's first
execution in 25 years.
Late Sunday, the Arizona
Board of Pardons and Paroles refused to
recommend that Gov. Fife Symington grant Mr.
Harding a reprieve or commute his sentence to
life in prison.
Late-hour appeals were
rejected in turn by the state Supreme Court, a
Federal judge in Tucson, a Federal appeals court
and the United States Supreme Court.
Defense lawyers had told the
parole board that Mr. Harding suffered brain
damage at birth that prevented him from
restraining violent impulses. Prosecutors said
the crimes were well-planned, not impulsive.
Execution Pace Climbs As Appeals
March 27, 1992 - The New York Times
Arizona is checking its gas
chamber. The state may need it for the first
time in 29 years on April 6, when it is
scheduled to execute Donald Harding for the
killing of three men.
California may soon carry out
its first execution in a quarter-century.
And Delaware executed a
killer this month for the first time since 1946.
Since the Supreme Court
reinstated the death penalty in 1976, a half-dozen
Southern states have performed most of the
nation's executions. But now the pace of them is
accelerating, and more states are making use of
the death penalty.
A big reason is that
prisoners are exhausting their appeals in state
and Federal courts, a process that can last
years, say lawyers who specialize in death
penalty cases. Back by Public Demand
At the same time, the Supreme
Court is spurning last-ditch requests for stays
and curtailing condemned prisoners' access to
Federal courts for appeals. Moreover,
politicians are coming under pressure to take a
hard line against crime.
"The American public wants it,"
said the Pennsylvania Attorney General, Ernie
Preate. "They're fed up with the criminals
getting away with 'murder' and they want to see
Every year criminals take
about 22,000 lives, and every year 250 to 300
people are sentenced to die. More than 2,500 men
and women are on the nation's death rows,
according to the NAACP Legal Defense and
Since the Supreme allowed
states to resume capital punishment, 166 men and
one woman have been executed.
Prosecutors have recourse to
the death penalty in 36 states, the military and
Federal courts; so far, 18 states have used it,
with three-quarters of the executions in six
states: Texas, Florida, Louisiana, Georgia,
Virginia and Alabama.
"The death penalty is largely
a symbolic method," said Ernest van den Haag, a
retired Fordham University professor who writes
about capital punishment and favors it. "In
effect, we have a death penalty, but we don't
really carry it out." 10 Men This Year
The numbers suggest the pace
of executions is increasing: 10 men have been
executed so far this year, compared with 14 all
of last year and 23 in 1990.
Delaware had its first
execution in almost 46 years on March 14, when
Steven Brian Pennell, 34 years old, was put to
death. He was sentenced to die for the murders
of two women and had been convicted of two other
In Arizona, Mr. Harding, 42,
is scheduled to die next month for the 1980
robbery-slayings of three businessmen. And in
California, Robert Alton Harris, 39, is
condemned to die on April 21 for the 1978
murders of two teen-agers.
Mr. Van den Haag predicted
that the number of executions could rise to 35 a
year. But that would still be far fewer than in
the mid-1930's, when executions reached a peak
of 199 one year.
In the debate on capital
punishment, advocates cite polls showing that up
to 80 percent of the American people favor a
death penalty. Opponents say support drops
sharply when those polled are given an
alternative or asked to specify which crimes
should be punished by death.
Robert Domer, 72, of Canton,
Ohio, who was on Ohio's death row in the mid-1960's
for a year and a half, said advocates of the
death penalty confused it with being tough on
criminals. 'It's Grim. It's Grim.'
"Capital punishment to them
means being tough, hard line," said Mr. Domer,
who was acquitted after winning a new trial in
the killing of a hitchhiker. "Most people don't
have any idea. It's grim. It's grim."
The debate is being played
out at the ballot box and in the statehouse.
Gov. William Weld of
Massachusetts, a Republican, is seeking to bring
back the death penalty there, where it was last
used in 1947. A close vote is anticipated.
In New York, Gov. Mario M.
Cuomo, a Democrat, has repeatedly rebuffed
attempts by lawmakers to reinstate the death
penalty, which was last used in the state in
The rising number of
executions reflects the people's will, said
Marvin White, a Mississippi assistant attorney
general who favors capital punishment. "This is
a democracy, you know," he said. "The people
know what they're doing."
By John Dean
Friday, Jun. 22, 2001
In 1992, just
18 days before Harris filed his
case, Arizona had executed Don
Eugene Harding in its gas
chamber. Following that
horrifying experience, Arizona's
attorney general and state
legislature put an end to the
gas chamber as the only method
of execution used by the state.
Why? An eyewitness account of
Don Eugene Harding's execution —
recounted later in the Supreme
Court's 1992 decision in
Gomez v. U. S. District Court
for the Northern District of
California — provides a
fumes enveloped Don's head
he took a quick breath. A
few seconds later he again
looked in my direction. His
face was red and contorted
as if he were attempting to
fight through tremendous
pain. His mouth was pursed
shut and his jaw was
clenched tight. Don then
took several more quick
gulps of the fumes.
point Don's body started
convulsing violently . . . .
His face and body turned a
deep red and the veins in
his temple and neck began to
bulge until I thought they
about a minute Don's face
leaned partially forward,
but he was still conscious.
Every few seconds he
continued to gulp in. He was
and his body was racked with
spasms. His head continued
to snap back. His hands were
several more minutes, the
most violent of the
convulsions subsided. At
this time the muscles along
Don's left arm and back
began twitching in a wave-like
motion under his skin.
Spittle drooled from his
mouth . . . .
not stop moving for
approximately eight minutes,
and after that he continued
to twitch and jerk for
Approximately two minutes
later, we were told by a
prison official that the
execution was complete.
Harding took ten minutes and
thirty-one seconds to die.
unusual? It takes one cold, mean
s.o.b. to say it is not.
834 F.2d 853
Donald Eugene HARDING, Petitioner-Appellant,
Samuel A. LEWIS, Respondent-Appellee.
United States Court of Appeals,
Argued and Submitted March 11, 1987.
Decided Dec. 21, 1987.
Appeal from the United States District Court for
the District of Arizona.
Before POOLE and BOOCHEVER, Circuit Judges, and
BOOCHEVER, Circuit Judge:
Harding appeals the district
court's dismissal of his petition for a writ of habeas corpus, 641
F.Supp. 979. He contends that he was not competent to waive his
right to counsel at his criminal trial and that his waiver was not
made knowingly and intelligently. He also argues that he waived his
right to counsel at the recommendation of his attorney, Dan Cooper,
and that this advice constitutes per se ineffective assistance of
counsel. We affirm.
The evidence that Harding brutally
and callously murdered two men was overwhelming. District Judge
Marquez detailed that evidence in his order denying Harding a writ
of habeas corpus and we set forth that summary in the appendix to
Harding was convicted of two
counts of first degree murder, two counts of armed robbery, two
counts of kidnapping, and one count of theft. He was sentenced to
death on each of the murder convictions. For two years while
awaiting trial, Harding was represented by a public defender, Dan
During this period, Cooper filed
thirty motions seeking, inter alia, to exclude evidence, to delay
the trial, and to develop an insanity defense. These efforts proved
futile. Cooper anticipated this and advised Harding that his only
chance was to represent himself with the hope of injecting
fundamental error in the trial, which would result in reversal of
his convictions on appeal.
On March 15, 1982, Harding asked
the state court to allow him to represent himself on an unrelated
charge of deadly assault by a prisoner. Judge Gin, the state trial
judge in both the assault case and the present case, questioned
Harding about his education, his experiences with the criminal
justice system, and the reasons for his wanting to defend himself.
He also warned Harding of the serious penalty he faced if convicted.
The court allowed Harding to represent himself on the assault charge
and appointed Cooper as advisory counsel at Harding's request.
On March 23, 1982, eight days
after Harding made his request to represent himself on the assault
charge, Cooper asked Judge Gin to allow him to withdraw from the
present case because Harding wanted to act as his own attorney.
Judge Gin reviewed Harding's statements about his education and his
familiarity with criminal procedure and warned him that he might
receive the death penalty if convicted of the murders.
The judge, however, did not
specifically refer to the difficulties faced by a lay person
representing himself. Harding confirmed the judge's review of his
background and stated he was absolutely certain he wanted to
represent himself. Judge Gin denied the request, however, when
Harding refused to sign the waiver of counsel form because it
included the appointment of Cooper as advisory counsel.
Cooper apparently told Harding
that Judge Gin would relieve Cooper as counsel only if Harding
threatened him. Harding told Cooper to consider himself threatened.
On April 15, 1982, Harding renewed his request to represent himself.
Cooper filed a motion to withdraw for ethical reasons at
approximately the same time. The presiding judge of the state court,
Judge Druke, held a hearing with Cooper in his chambers and off the
Judge Druke informed Judge Gin
that Harding had told Cooper that he (Harding) intended to commit a
crime and Harding had refused to waive any potential conflict of
interest that might arise during Cooper's continued representation.
Judge Gin discussed with Harding his desire to represent himself and
whether Harding would have to accept advisory counsel.
The judge then permitted Harding
to represent himself but appointed Cooper as advisory counsel,
stating that "the problem of threats" would persist no matter who
represented Harding or acted as advisory counsel. Cooper continued
to pursue some of the pretrial motions he had filed and served as
advisory counsel throughout the trial, which started on April 20,
Harding was convicted on April 27,
1982. The court held a hearing on aggravating and mitigating
circumstances for purposes of sentencing on May 26, 1982. The court
had ordered a psychiatric evaluation before the hearing, but Harding
would not speak to the doctor. The judge twice offered to reappoint
counsel, but Harding refused. At the hearing the court again offered
to appoint counsel and to permit more time to marshal evidence of
mitigating circumstances. Harding declined counsel and presented no
mitigating evidence. The court found four aggravating circumstances.
Harding was sentenced to death on each of the murder counts.
The Arizona Supreme Court affirmed
the convictions and the sentences, State v. Harding, 137 Ariz. 278,
670 P.2d 383 (1983); the Supreme Court of the United States denied
certiorari, 465 U.S. 1013, 104 S.Ct. 1017, 79 L.Ed.2d 246 (1984).
Harding filed for post-conviction relief under Arizona's rules of
criminal procedure. Ariz.R.Crim.P. 32. The state court held an
evidentiary hearing on the issue of whether Harding was denied a
fair trial or effective assistance of counsel. The court denied
relief and a subsequent petition for reconsideration; the Arizona
Supreme Court declined to review the decision. On October 16, 1985,
Harding filed an amended petition for a writ of habeas corpus. The
district court dismissed the petition.
STANDARD OF REVIEW
We review de novo the district
court's decision on a petition for a writ of habeas corpus. Chatman
v. Marquez, 754 F.2d 1531, 1533-34 (9th Cir.), cert. denied, 474
U.S. 841, 106 S.Ct. 124, 88 L.Ed.2d 101 (1985). Factual findings
made after a hearing by a state court in a proceeding for post-conviction
relief are entitled to a presumption of correctness under 28 U.S.C.
Competency to Waive Counsel
Due process requires that a state
court initiate a hearing on the defendant's competence to waive
counsel whenever it has or should have a good faith doubt about the
defendant's ability to understand the nature and consequences of the
waiver, or to participate intelligently in the proceedings and to
make a reasoned choice among the alternatives presented. See Chavez
v. United States, 656 F.2d 512, 515 (9th Cir.1981); Sailer v. Gunn,
548 F.2d 271, 275 (9th Cir.1977); Sieling v. Eyman, 478 F.2d 211,
215 (9th Cir.1973). A good faith doubt exists when there is
substantial evidence of incompetence. United States v. Veatch, 674
F.2d 1217, 1223 (9th Cir.1981), cert. denied, 456 U.S. 946, 102 S.Ct.
2013, 72 L.Ed.2d 469 (1982).
Evidence of incompetence includes,
but is not limited to, a history of irrational behavior, medical
opinion, and the defendant's behavior at trial. See Drope v.
Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 908, 43 L.Ed.2d 103
(1975); Moore v. United States, 464 F.2d 663, 666 (9th Cir.1972).
Whether a good faith doubt should have existed in the trial court's
mind is not a factual finding entitled to the presumption of
correctness under 28 U.S.C. Sec. 2254(d). See Sumner v. Mata, 455
U.S. 591, 597, 102 S.Ct. 1303, 1306, 71 L.Ed.2d 480 (1982) (per
Cooper moved to have Harding
examined to determine if he was competent to stand trial and to
investigate his mental condition at the time the crimes were
committed with the view of developing an insanity defense. At the
hearing on this motion, Cooper alleged that Harding suffered from
brain disease and epileptic seizures but assured the state court
that he was competent to stand trial.
On March 5, 1981, Harding moved to
withdraw his motion for examination of his mental condition; the
motion was denied. The court appointed two psychiatrists to examine
Harding but he was uncooperative with them. The state court found
Harding competent to stand trial and Harding does not appeal that
As the district court points out,
there was much evidence of Harding's competence to waive counsel
that allayed any doubts created by the motion for a mental
examination. Harding was responsive and rational at trial. He
objected whenever the court or the prosecutor addressed their
remarks to advisory counsel rather than to him. He expressed himself
boldly and effectively when he chose to do so.
During Harding's efforts to
dismiss Cooper and represent himself, he wrote a letter to Cooper.
The letter acknowledged Cooper's "diligent efforts" and his pursuit
of every opportunity to build a defense; it also admitted that there
was no good defense and that he would be convicted no matter who
Harding's actions at trial and his
written statements to Cooper indicate that Harding understood the
consequences of waiving his right to counsel, made a reasoned choice
from the limited alternatives available to him, and possessed
sufficient intelligence to participate in the proceedings when he
chose to do so. The state court did not err when it permitted
Harding to represent himself without a hearing on his competence.
Knowing and Intelligent Waiver
The trial court must carefully
balance the defendant's right to self-representation and its duty to
ensure that defendant's waiver of the right to counsel is made with
full awareness of the risks. United States v. Harris, 683 F.2d 322,
324 (9th Cir.1982). The preferable procedure for determining whether
the waiver is made knowingly and intelligently is to discuss with
the defendant in open court his understanding of the charges, the
possible penalties, and the dangers of self-representation. United
States v. Dujanovic, 486 F.2d 182, 188 (9th Cir.1973).
The failure to engage the
defendant in such a colloquy does not necessitate reversal, however,
if the record otherwise reveals a knowing and intelligent waiver.
Cooley v. United States, 501 F.2d 1249, 1252 (9th Cir.1974), cert.
denied, 419 U.S. 1123, 95 S.Ct. 809, 42 L.Ed.2d 824 (1975). This
exception, however, should rarely be invoked. United States v.
Aponte, 591 F.2d 1247, 1250 (9th Cir.1978).
On review, the issue is what the
defendant understood about the proceedings, including the possible
consequences, and the dangers of acting as his own attorney. United
States v. Kimmel, 672 F.2d 720, 721-22 (9th Cir.1982). Whether the
waiver was made knowingly and intelligently is a mixed question of
law and fact which we review de novo. See Sumner, 455 U.S. at 597,
102 S.Ct. at 1306.
The state court inquired about
Harding's education and familiarity with criminal procedures when he
asked to represent himself on the assault charge.
Eight days later, on March 23, 1982, when Cooper first tried to
withdraw in the present case, the court warned Harding of the
possible penalties and complexities in the action.
The court did not, however,
explicitly warn him of the difficulties faced by a lay person
conducting his own defense. Preferably, the trial court should give
such a warning on the record. Without such an explanation by the
court of the difficulties and dangers of self-representation, we
must look to " 'the particular facts and circumstances surrounding
that case, including the background, experience and conduct of the
accused.' " Kimmel, 672 F.2d at 722 (quoting Cooley, 501 F.2d at
The district court found that
[w]ithin three months of his assignment to
Harding's case Cooper began discussing with him the possibility of
representing himself. They discussed the problems and options
available, these included the possibility of an insanity defense,
the lack of a factual defense and the chances of receiving the death
penalty. Cooper also explained to Harding the concept of fundamental
error and the chance of appellate reversal through the right to
Order of April 30, 1986, at 24 (citations
to exhibits omitted). These findings are supported by the record.
Harding had the equivalent of a high school education and expressed
himself well at trial and in his letter to Cooper. He also had
sufficient experience with the criminal justice system to make one
of his intelligence aware of the benefits of counsel. We agree with
the district court that Harding understood the risks of self-representation.
Harding was adamant in his demands
to represent himself. Cooper and Harding apparently concocted the
story of threats to force Judge Gin to permit Cooper to withdraw.
Unfortunately, the object of their scheme was not original:
It appears that Romero, by his own deliberate and
intentional actions, seeks to insert built-in error in these
proceedings, so as to postpone a final inquiry into his failure to
comply with the tax laws of this country. Courts are established at
public expense to try issues, not to play games.
United States v. Romero, 640 F.2d
1014, 1016 (9th Cir.1981).
Although our review of waiver of
counsel in a capital case, by its very nature, must be more
searching, we cannot countenance deliberate efforts to inject error.
As the state court found when it denied Harding's motion for post-conviction
relief, his waiver was an act of desperation done by a man with the
intelligence to know he was in a situation requiring desperate
measures. He knew he could be sentenced to death if convicted. He
knew he would in all likelihood be convicted. We conclude that
Harding made his waiver knowingly and intelligently.
Per Se Ineffective Assistance of Counsel
Most claims of ineffective
assistance of counsel must be analyzed according to the two-part
test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). To succeed, the defendant must show
that counsel's performance was deficient and that without counsel's
errors there is a reasonable probability that the result would have
been different. Id. at 687, 694, 104 S.Ct. at 2064, 2068. Harding,
realizing that he cannot demonstrate that his waiver prejudiced the
result, argues that Cooper's recommendation to waive counsel should
be presumed prejudicial. See United States v. Cronic, 466 U.S. 648,
104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).
In Cronic, the Supreme Court
reiterated that, in most cases, a defendant must demonstrate that
the alleged error of his attorney had "some effect ... on the
reliability of the trial process." Id. at 658, 104 S.Ct. at 2046. It
created an exception, however, for those "circumstances that are so
likely to prejudice the accused that the cost of litigating their
effect in a particular case is unjustified." Id. (footnote omitted).
Such circumstances are the
complete absence or denial of counsel at a critical stage of trial,
and situations where the likelihood that counsel could have been an
effective adversary was so remote that the trial was inherently
unfair. Id. at 659-61, 104 S.Ct. at 2047-48. "Apart from
circumstances of that magnitude, however, there is generally no
basis for finding a Sixth Amendment violation unless the accused can
show how specific errors of counsel undermined the reliability of
the finding of guilt." Id. at 659 n. 26, 104 S.Ct. at 2047 n. 26.
We conclude that Cooper's advice
of self-representation to Harding should not be presumed
prejudicial. In this case, it is not unduly burdensome for us to
assess the effect of that advice on the outcome of Harding's trial.
If a legal or factual defense exists such advice is clearly
prejudicial. Harding does not assert that any such defense was
available, and we find none after our own examination of the
If the defendant did not
understand counsel's reasons for suggesting this strategy and the
risks involved in pursuing it, he is entitled to the relief of the
writ. Cf. Martin v. Rose, 744 F.2d 1245, 1249-51 (6th Cir.1984) (counsel,
mistakenly believing that participating in the trial would waive
certain pretrial motions, did not explain to his client his failure
to participate or the consequences of it; defendant entitled to
habeas corpus relief under the Strickland test because waiver of
counsel was not made knowingly or intelligently). We have already
determined that Harding was a knowing and willing participant in
this scheme. He knew "what he [was] doing and his choice [was] made
with eyes open." Adams v. United States ex rel. McCann, 317 U.S.
269, 279, 63 S.Ct. 236, 241, 87 L.Ed. 268 (1942); Dujanovic, 486
F.2d at 187.
There is another reason for
refusing to presume prejudice in this case. The presumption would
create a foolproof defense. See Martin, 744 F.2d at 1251-52. If
Harding had been successful in creating fundamental error by
representing himself, he would have been entitled to a new trial. If
prejudice is presumed because Cooper advised him to do so,
habeas corpus relief would entitle him to a new trial or release
from custody even though he otherwise failed in his attempt to
create an unfair trial. We cannot allow this tempting gambit for
counsel and client.
We conclude that Harding was
competent to waive his right to counsel, that he did so knowingly
and intelligently, and that he was not prejudiced by Cooper's
advising him to do so. The denial of the writ of habeas corpus is
On January 26, 1980, the Tucson
Police Department was called to investigate suspicious circumstances
at the La Quinta Motel in Tucson, Arizona. The Officers involved
discovered two bodies, one located next to the bed and the other in
the bathroom. The bodies were identified as Martin L. Concannon and
Robert A. Wise.
The jury was shown approximately
150 pictures depicting the room where the crime occurred and the
autopsies performed on the victims. The pictures demonstrated that
the victims were bound repeatedly with various types of ligatures.
The body of Martin L. Concannon
was found on the floor of the bathroom covered with a bedspread. His
body had been repeatedly bound, two men's socks stuffed into his
mouth and a pillow placed under his head. Robert Wise's head was
tethered to the bed and he was hog-tied with his feet bound together
and tied with a sheet to his elbows. A belt had been wrapped around
his wrists which constricted his hands.
Blood splattered on the walls
indicated that Wise was beaten repeatedly. Pieces of teeth were
found underneath his head. Small chips of synthetic wood were found
under the body which were identified as pieces from the base of the
hotel room lamp. Chemical analysis showed human blood on the base of
this lamp. The harp of the lamp was found near Wise's body. The lamp
itself had been plugged back into the wall.
Identifiable prints were taken
from the do-not-disturb sign found outside the door, a small glass
on the table near the bed, cellophane wrapping from a package of
Winston cigarettes and off the top part of the lampshade. All four
of these fingerprints were identified as matching those of Donald
Harding. Fingerprints were also removed from the telephone receiver,
a light bulb and an ashtray. These prints were also identified as
matching those of Donald Harding.
The pathologist testified that
Robert Wise was shot in the chest from front to back and in the left
temple. The wounds revealed that he was shot with the muzzle of the
gun only a few inches from the skin. He sustained a multiple
fracture to the jaw and his teeth had been broken by repeated
impacts with a blunt object.
A tether had been placed around
Wise's neck with enough force to create a U-shaped abrasion, which
penetrated the skin, causing the blood vessels to rupture. The
victims wrists had been tightly bound. Wise's death was caused by
the bullet wound to the chest which perforated the spinal cord. The
time of death was estimated by the pathologist at between 1 p.m. and
7 p.m. on January 25, 1980.
The autopsy performed on Martin
Concannon showed that his death was also caused by a shot to the
chest which perforated the spinal cord. He had also been shot in the
temple. The autopsy revealed that the two socks which had been
pushed to the back of his throat had covered all breathing passages.
Hemorrhaging in the scalp tissue, caused by lack of oxygen,
indicated that Concannon had not died immediately.
Jeri Wise testified that her
husband was the district manager for KAR Products. She testified
that he left the 24th of January to see Marty Concannon, one of his
salesmen, and to make a call in Ft. Huachuca. Mrs. Wise expected him
to return the next day, January 25, around 6:30 p.m.
At approximately 8:40 on that
night a man came to the Wise's home and asked if Bob was there. Mrs.
Wise testified that the man was holding one of her husband's
business cards and acting very nervous. She stated that he was
wearing a rust colored jacket and a burgundy shirt. The man left the
Wise's home when she told him she expected her husband home soon as
he was already overdue. Mrs. Wise positively identified Donald
Harding as the man at her door that night.
January 26, 1980, a Northern
Arizona University police guard was assigned to a parking lot near
the athletic dome on the NAU campus to ensure that only members of
the booster club parked in the lot. He observed a man driving an
Oldsmobile, with Ohio plates, pull into the lot. The guard told the
driver that he would not be allowed to park in the lot. The driver
asked if there was a place he could park and the guard suggested a
lot north of the dome. The guard identified the driver of the car as
Donald Harding. The Oldsmobile he was driving belonged to Martin
The guard testified that Harding
appeared a little strange because he spoke with a Southern accent
but was driving a car with Ohio plates. He testified Harding was
also wearing two jackets and had numerous articles in the back seat.
The guard ran a warrants check on the car and was told that it had
been stolen from Tucson. He called for back up units and they
A body search revealed a .25
automatic in Harding's jacket pocket. A ballistics check run on the
gun showed that it was the same weapon used to kill Concannon and
Wise in Tucson. Two security badges, a wallet and an identification
card issued to Ronald Svetgoff were also found on Harding. Harding
told the NAU police that he was Svetgoff but looked different
because he had lost some weight and changed his hair.
Robert Svetgoff testified that he
was robbed in a motel in Waco, Texas on December 18, 1979 by a man
he identified as Donald Harding. He said that Harding approached him,
showed him a security badge, identified himself as a security
officer and demanded that Svetgoff produce identification.
Svetgoff identified one of the
badges found on Harding as the one used during this robbery. When
Svetgoff opened the door to his hotel room, Harding pulled a gun,
forced Svetgoff onto the floor and tied him up with a tie, a torn
dress shirt and his jumprope. Harding put a sock in Svetgoff's mouth,
wrapped a t-shirt around that and then tied a belt around his mouth.
Harding then rolled Svetgoff in a bedspread, dragged him into the
bathroom and placed a pillow under his head. Harding stole all of
Svetgoff's clothes and left in his car.
The Tucson police executed a
search warrant on the car that Harding was driving when he was
arrested. In it were found; 1) a tan attache case (which Mrs. Wise
identified at trial as her husband's), 2) loose credit cards in the
name of Robert Wise and 3) a box of pens and a memo pad with KAR
The Tucson police obtained
clothing from the Coconino County Jail which included a burgundy
colored long-sleeved shirt, a pair of black shoes and two jackets.
Jeri Wise identified the burgundy shirt as the one Harding was
wearing when he came to her house. Chemical tests performed on this
shirt showed the presence of human blood. Inside one of the jackets
was Robert Wise's drivers license and page C-D torn out of an
address book with the names of Pam and Martin Concanon circled.
Two statements made by Harding
were introduced into evidence at the trial. The first was made while
Harding was being transported from Flagstaff to Tucson. A Tucson
police detective testified that it was a cold day and Harding was
wearing only a short-sleeved shirt. The detective opened his
suitcoat to protect him from the wind while they waited for the
airplane. The detective testified that Harding looked at him and
said "you don't need to do that, I deserve whatever I get."
Harding made a second statement in
Tucson. The same detective testified that Harding asked if he could
get some of his clothes returned and that the detective told him
that the police had to keep the clothes in order to look for
evidence. Harding told the detective that he might find something on
the burgundy shirt and shoes but the rest of the clothing had not
Order of April 30, 1986, at 2-7 (citations
to exhibits omitted).